The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against by Respondent in employment through sexual harassment; because of her age, sex, marital status, and handicap; and in retaliation for complaints made by her against management.
Findings Of Fact 1. At the time in issue, the facility in question in this hearing was owned by HP Tampa, LC (HP Tampa) and was operated by Mr. James Rogers under a contract with his management company. After Mr. Rogers' contract was terminated, the facility was operated by Cornerstone Hospitality Group Cornerstone. Management 's duties included employee relations. As manager, Mr. Rogers had almost free rein to hire and fire and was responsible for employee policies. HP Tampa did not oversee these details. 2. Petitioner had been employed at the Respondent's property in Tampa for approximately 18 years when she was terminated on November 27, 1995. During the period of her employment, Petitioner was recognized at least once as employee of the year and was asked to take over management of the facility's bar, which she initially refused because she had several children to raise. Finally, after six years, she took the position and served as manager of the hotel bar, the Silver Dollar Saloon, for the last 12 of the 18 years she worked there. Petitioner contends she worked without any problems until Mr. Lloyd was hired in April 1995, and asserts she has never filed a discrimination complaint against any employer until this one. 3, Mr. Lloyd was hired as comptroller at the facility in April 1995. It was announced that his job was to get control of the audits of the operation, and he was to work with the Petitioner to implement controls to reduce costs in the lounge. Petitioner understood, however, that she was to continue to report directly to the Manager, Mr. Rogers, and that she was on a parallel level of authority to Mr. Lloyd. 4. Petitioner alleges that during June and July 1995, Mr. Lloyd began making sexually oriented comments to her. He mentioned her breasts -- jokingly, she believed because she was so slim at the time and had small breasts. Petitioner was not amused by Mr. Lloyd's attempts at humor and complained to him directly. 5. Petitioner also claims that Mr. Lloyd began to drink More and more while on the job. On one occasion, she contends, he came into the liquor room while she was there and grabbed her from the back. She resisted and, afterwards, complained to Mr. Rogers and his assistant both orally and in writing. She received no feedback. 6. According to Petitioner, sometime during either July or August 1995, Mr. Lloyd called her into his office to go over the bar's operating figures. After a period of business conversation, Mr. Lloyd reportedly stated it was a shame she was married. Petitioner demurred to that comment, and when she got up to leave, she claims Mr. Lloyd grabbed her and kissed her. When she slapped him in response, he replied that he always got what he wanted. After this incident, Petitioner wrote another memo to Mr. Rogers and asked to see him. He finally did see her quite a while later, she claims, but treated the incident lightly. She wanted him to speak to Mr. Lloyd with her because she was uneasy working with him, but this did not happen. 7. On another occasion, when she was supposed to go to Las Vegas with her husband, she gave up her trip to work, letting her husband go by himself. While her husband was gone, she contends, Mr. Lloyd asked her to meet him at an off-premises location, a request which she refused. At this point, she also told him what she thought of him. She also claims he had touched her on two. occasions, which resulted in a heated argument between them. 8. On November 3, 1995, an employee of the bar came to Ms. Cremeens and advised her that Mr. Lloyd had said that she, the reporter, and another employee would be terminated. Ms. Cremeens confronted Mr. Lloyd and asked him by what right he had told employees under her supervision they would be terminated. Mr. Lloyd became loud and threatening, which scared Ms. Cremeens. She immediately tried to call Mr. Rogers, but he was out of town. As a result, she left messages for Mr. Rogers and his assistant that she wanted to see them as soon as possible. 9. Ms. Cremeens finally got to talk with Mr. Rogers with his assistant present and told him how frightened of Mr. Lloyd she was. She told Mr. Rogers she would try to get a restraining order against Mr. Lloyd and at that point, Mr. Rogers told her he would talk to Mr. Lloyd and get back to her. Mr. Rogers did not do so, however, until he found out that Mr: Cremeens' husband had tried to call mr. Morris, Mr. Rogers' boss. Ms. Cremeens also told Mr. Rogers she would talk to Mr. Morris about what was going on even if it cost her her job. 10. Some time thereafter, Ms. Cremeens was called in and terminated. She was told at the time her termination was necessitated because of a drop in business and because, due to the effect on the working atmosphere caused by the dissention between her and Mr. Lloyd, one of them had to go. At that time, Mr. Rogers told Ms. Cremeens that she would receive four weeks vacation pay, but she never got it. Her termination threw her into a state of shock as a result of which she became extremely depressed and cut herself off from family and friends. She claims she has never been right since. The irony of this situation, she contends, is the fact that in January 1995, she was offered a job at the High Point Resort. At that time, Mr. Rogers came to her and begged her not to leave because she was doing such an excellent job. If this is the case, she queries, why was she let go for cause less than a year later? 11. Ms. Cremeens has sought other employment since her termination and worked part time as a waitress and bartender. However, she was let go after a short while because of mutual dissatisfaction. She claims she has never been able to bring herself back to the status she occupied while manager of the bar at the Days Inn. She has been to counseling in an effort to help herself, but she finally realized that the only way to get this trauma out of her system was to file her complaint. As it is, it has taken four years for the state to reach a determination of cause. Much of this time, she believes, was due to the failure of the Respondent to provide the information required by the Commission. 12. The Respondent sought to make much of the fact that Ms. Cremeens has been married four times and filed bankruptcy with her third husband in 1993. Her fourth husband filed bankruptcy in 1999, but she was not a party to that action. Neither her multiple marriages nor her bankruptcy have been shown to have any bearing on the instant issue, however, and are disregarded. 13. Petitioner admits, however, to having failed to report all tips she received when she manned the service bar from time to time. The facility had a requirement that all bar employees report tips for consolidation and sharing and contends Petitioner's failure to do this is identified as a basis for her termination. 14. Mr. Rogers was manager of the facility in question during the entire time in question. He contends that the basis for Petitioner's termination was a continuing decline in the profitability of the bar operation under her Management from a significant profit in 1991 to a loss of $1,048 in 1995. Ms. Cremeens was already working as bar Manager at the hotel when Mr. Rogers began overall management. The Silver Dollar was a local bar primarily for local people which was also used by hotel patrons. The bands, which Played in the evening, were mostly country and western. 15. As general manager, Mr. Rogers had as Support staff an assistant Manager, a comptroller, a beverage/lounge Manager (Ms. Cremeens), a restaurant manager, an executive housekeeper, a chief engineer, and a director of sales and marketing. Each of those department heads had a staff. The department heads were Salaried, but the Majority of the employees were hourly employees. 16. Petitioner was the only salaried lounge employee. Her staff included bartenders, Servers, and bar backs, who were hourly employees and also received tips. Tips were to be reported to the comptroller for tax purposes, and, though Petitioner was a salaried employee, she also received tips which should have been reported. As was noted previously, Petitioner admitted she did not always do this. The band was contracted for and band members were not hotel employees. 17. Because of a downturn in revenues and profits over the years starting in 1990, cutbacks in all departments (not just the lounge) were Mandated by a memorandum dated December 20, 1993, Mr. Lloyd was hired as comptroller by mr. Rogers sometime in 1995 because profits at the hotel, including the lounge, were declining so rapidly a real potential for closure of the hotel existed. Mr. Lloyd had a degree in auditing and was a Certified Public Accountant who had experience in hotel and restaurant Management. 18. Revenues in all departments of the hotel were declining, but not as badly as in the lounge upon which revenues management relied for a large portion of the cash flow. The lounge had previously been a "cash cow" for many years, and when the revenues declined, the hotel's owners started putting pressure on Mr. Rogers. His job was at stake, and since he was paid a portion of profits, so was his income. 19. Historically, the lounge manager had the authority to hire and fire employees, to schedule employee work hours, to supervise employees and bartending, to hire all bands and entertainment, to purchase all liquor and bar supplies, to prepare for all inspections, to provide for bar security, and to insure harmonious guest relations. 20. Petitioner, as lounge manager, had total responsibility for the lounge operation, including financial responsibility for that profit center, and to insure the facility operated within budget constraints for entertainment, advertising, and drinks. She was to report to Mr. Lloyd as comptroller on accounting matters, and Mr. Rogers asked Mr. Lloyd to work with Petitioner to bring lounge expenses under control and to increase sales. According to Mr. Rogers such a relationship is common in the industry. 21. At the time Mr. Rogers hired Mr. Lloyd, he claims he had some personal concerns about the hotel operation. Because of declining sales and profits, particularly in the lounge, and as the result of the negative reports of comparison shoppers, he wanted the lounge operation looked at with regard to service levels (were servers attentive and courteous?), portion control, and accounting for sales to tell him how the customers were being served. He also claims he had heard complaints of rudeness and lack of courtesy by employees, and most of these reports had been passed on to Petitioner. Though they had had an open communication for nine years, he found that usually on negative reports Petitioner denied the problem or became defensive. 22. Nonetheless, Mr. Rogers instructed Mr. Lloyd to work with Petitioner and come up with proposed controls in the bar to decrease expenses. Mr. Lloyd came up with the controls and he and Mr. Rogers met with Petitioner about them. Some of Mr. Lloyd's proposals were not acceptable to Petitioner. One of these was the proposal to close the service bar, which was where Petitioner often worked and from which she derived tips. Mr. Lloyd wanted to close it because of the inability to control what went on there. The proposals were put into effect, but even so, there was little improvement in the operation. Mr. Lloyd wrote a memorandum to Mr. Rogers to this effect on November 1, 1995, and sometime after receiving it, Mr. Rogers made, he 10 claims, a business decision to terminate Petitioner for her failure to perform adequately and to implement proposed internal controls and increase profits. 23. According to Mr. Rogers, Petitioner assumed a proprietary interest in the lounge operation. She had built up profits during the late 1980's and the early 1990's, but from 1993 on, business dropped. He claims he gave her five years to turn the operation around and make it profitable again, but she failed to do so, and he considered letting her go even before Mr. Lloyd was hired. In addition, her salary as bar manager was based on her prior performance, and she was not performing up to that level. Therefore, he believed he could save money by terminating her and having a bartender do the work. After Petitioner was terminated, another bar manager was not hired. Instead, one of the bartenders was promoted to head bartender, with a slight hourly wage increase, and was assigned some of Petitioner's former duties. 24. Concerning the complaints allegedly made by Ms. Cremeens regarding sexual harassment by Mr. Lloyd, Mr. Rogers contends he never received any complaints from her about it or reports from Petitioner or anyone else that Mr. Lloyd was harassing her or had asked her out. He admits that she complained to him that she was afraid of Mr. Lloyd because of an incident which occurred in the kitchen. On the whole, there is insufficient evidence to support finding that Ms. Cremeens 11 complained to Mr. Rogers about Mr. Lloyd sexually harassing her, and it is so found. on the other hand, there is sample evidence that she complained to Mr. Rogers about Mr. Lloyd's rudeness, threats, and verbal abuse, but these do not constitute actionable misconduct in this forum. 25. With regard to the kitchen incident, both Petitioner and Mr. Lloyd came to mr. Rogers upset with each other. As he’ recalls, Petitioner came to see him first contending that she and Mr. Lloyd had had an argument and she was afraid of him due to his size and his temper. At the time, Mr. Rogers asked her if Mr. Lloyd had touched her and she said no. She indicated that Mr. Lloyd had started the altercation, but she admitted she took part. Mr. Rogers claims he took care of the incident, but apparently not to Petitioner's satisfaction. 26. It appeared to Mr. Rogers that Petitioner felt she owned the bar and could ignore instructions she didn't like. He recalls she complained about Mr. Lloyd constantly for various things, but he cannot recall it ever being for harassment or assault. In each case he claims he looked into her complaints and could not find any misdeeds by Mr. Lloyd. It was evident to Mr. Rogers that Petitioner wanted Mr. Lloyd out of the bar which she apparently felt was her territory. However, he also received complaints about Mr. Lloyd from the director of sales and Marketing and from his own son, who has a learning disability. Both indicated that mr. Lloyd yelled at them and was abrupt, but 12 neither complaint was of a sexual nature. Mr. Rogers received a total of four complaints about Mr. Lloyd, for each of which Mr. Lloyd was reprimanded. 27. Kristi Carroll, formerly administrative assistant to Mr. Rogers when he was manager of the Days Inn, worked there at the same time Mr. Lloyd did. At no time did she ever see Mr. Lloyd engage in any sexual misconduct on duty, nor did she ever hear any complaints of such even from Petitioner. She knows of no sexual advances by Mr. Lloyd to any hotel employee. There is evidence to the contrary, however. 28. When Mr. Rogers left the management of the hotel in early 1997, he claims he was not aware of Petitioner's complaint and was not made aware of it until January 2001. Petitioner worked under his supervision for approximately nine years and was equal to Mr. Lloyd in the chain of command. He considers the two memoranda which Mr. Lloyd wrote concerning her performance to be warnings to her but neither was placed in her personnel record after she signed acknowledgement of it. , . 29. Mr. Rogers admits that during the time in issue, 1991 through 1995, room income and beverage income both dropped radically. He includes in the reasons therefor in the bar area as being increased competition; the cessation of band entertainment, a decision of his; a lack of air conditioning; and crime in the immediate area. All these factors contributed to a reduction in patronage, but he considers Petitioner's performance 13 to be the Major cause. In 1994, due to a decline in restaurant business, mr. Rogers considered Closing the restaurant and making the whole area a lounge however, he did not do so. 30. Ms. Carroll, while assistant general manager during 1995, looked into the causes of the lower hotel and lounge revenues, which had declined from good levels in 1993 and 1994, Her investigation showed that increased competition from new Ybor City clubs substantially impacted revenue in the Silver Dollar. Ms. Carroll immediately noticed tension between Mr. Lloyd and the Petitioner due to Mr. Lloyd's new Procedures and his interference with Petitioner's authority. He was given input into areas wherein Petitioner had previously had free reign, and this was obviously difficult for Petitioner to accept. 31. Mr. Rogers ultimately concluded that Petitioner might have to be terminated, When it finally occurred, Petitioner's removal was based on a financial decision that a lounge Manager was not needed. After a thorough review of lounge advertising, entertainment, the need for a back bar, and the size of the staff, it was deemed beneficial to replace the salaried Manager position with a current bartender paid hourly. ms. Carroll admits that management knew the decline in income in the bar was not due solely to Petitioner's Management. There was a definite increase in competition, and Petitioner's being laid off was a cost cutting decision. 32. At the time of Petitioner's removal, neither 14 Ms. Carroll nor mr. Rogers knew of Petitioner's complaint nor diq Petitioner's age play any part in the decision. Ms. Carroll 33. Ms. Carroll was present when Petitioner was terminated Mr. Rogers about vacation time. She cannot recall the Particulars of the discussion, however, but it is found that Petitioner was promised four weeks vacation time for which she was not compensated. 34. Ms. Carroll also substantiates Petitioner's claim that Mr. Lloyd was argumentative and abusive in his work relations with subordinate employees. She knew there was tension between Petitioner and mr. Lloyd and that Petitioner complained to Mr. Rogers, but she cannot recall the specific complaints. She is of the Opinion that mr. Lloyd had a temper and is aware that Mr. Lloyd had altercations with several staff members. Notwithstanding all the bad language between Petitioner and Mr. Lloyd, Ms. Carroll cannot recall ever hearing Petitioner use foul language or curse customers. 35. Several employees of the lounge were aware of the conduct of both Petitioner and mr. Lloyd. Several claimed Mr. Lloyd was loud and abusive in language to employees. Several i5 recalled he made a Sexually oriented comment regarding at least one female employee. Further it is clear that Mr. Lloyd dated at least two female employees of the lounge, one of whom was made head bartender when Petitioner was terminated. 36. On the other hand, while at least one employee described Petitioner as seductive and flirtatious, the majority claimed otherwise, and while her detractors described her as loud and abusive, the Majority of her employees did not. At no time did any of the lounge employees, save those aligned with Mr. Lloyd, describe Petitioner as having lost interest in the lounge operation before she was terminated. 37. According to Sadie Strickland, a long-time co-worker of Petitioner in the lounge, Mr. Lloyd would talk to lounge employees about Petitioner and her performance and he espoused opinions and suggestions which he wanted implemented in the bar without seeking or obtaining Petitioner's participation. Nevertheless, Petitioner remained supportive. When on one occasion Ms. Strickland threatened to quit because of problems with Anna-Marie Genco, another lounge employee, Petitioner talked Anna-Marie out of it. Petitioner was, in her opinion, a good employer/manager who gave her best without any support from upper Management. Rather than help, Mr. Rogers took away the bar's advertising budget and refused to act on Petitioner's suggestions. 38. To be sure, there was tension between Petitioner and 16 Mr. Lloyd and between Petitioner and some other lounge employees. For example, on November 8, 1995, Petitioner is alleged to have called in Ms. Carla Genco and her sister, Anna-Marie, and yelled at them because of their refusal to talk to Ms. Strickland. on that occasion, Petitioner is alleged to have said she'd like to stomp Anna-Marie's "f---ing butt." As a result, Ms. Genco prepared a letter to Mr. Rogers recounting the incident. Ms. Genco does not know what, if any, action was taken, but she enjoyed working at the hotel because both Mr. Lloyd and Mr. Rogers were good to her. 39. Mr. Lloyd's account of the situation differs substantially from that of the Petitioner. When he first started working at the hotel as comptroller, he was instructed to initiate internal controls in several areas, one of which was the bar. Before doing anything, he analyzed the situation for about two and a half months and came up with proposals which he coordinated with Mr. Rogers. 40. Mr. Lloyd found a lack in internal controls. Bar stock was not being maintained appropriately, inventory was too high, requisitions were not being done on a regular basis, bar tabs were not being rung up timely, and guest checks were not being accounted for. He also felt there was not enough business to justify keeping the service bar open. Labor costs were too high relating to sales, and costs were higher than industry standards due to the pouring of too many free drinks. 17 41. Mr. Lloyd gave a copy of his analysis to both Mr. Rogers and the Petitioner, and discussed his analysis with Ms. Cremeens. Her reaction to the memo was that she would try to comply with the suggestions. Somewhat later, in November 1995, Mr. Lloyd prepared a follow-up memorandum, which he gave to Mr. Rogers and which pointed out those suggestions which were not being followed by Petitioner and identified additional deficiencies for review. The memo identified a continuing problem with free drinks; a failure to ring up sales at the time of sale; a failure to monitor promotion drinks; a failure to properly punch time cards; and a failure to properly declare tips. 42. Mr. Lloyd's analysis of Petitioner's performance indicated to him that she had lost interest in her job. This conclusion was based on his determination that she had failed to provide relevant cost information as required; failed to be on site for an appropriate time on busy nights; and demonstrated a temper and used foul language at inappropriate times. He observed some instances wherein Petitioner would get mad at people working behind the bar and would start yelling and swearing at them. Other similar instances were reported to him. This is not supported by the majority of lounge employees, however. 43. When Petitioner was terminated in November, 1995, she 18 was not replaced with a salaried bar manager. Instead a position was developed as head bartender for operations, and Mr. Lloyd assumed responsibility for inventory and cash payments. Anna Genko was promoted to head bartender on an hourly wage basis as a joint decision of Mr. Rogers, the assistant Manager, and Mr. Lloyd. According to Mr. Lloyd, there was no immediate change in profitability as a result of these changes, but over the succeeding year, there was a considerable increase which he claims was due to the implementation of innovations designed to attract customers. 44. Mr. Lloyd contends that Petitioner's age had nothing to do with her termination. He repeatedly asserted that the decision to terminate Petitioner was based on her performance. He claims to have discussed the problem areas with her and explained her weaknesses. However, he contends, she failed to modify her performance to comply with the directives of management. 45. Mr. Lloyd also denies having sexually harassed the Petitioner. He denies having suggested she meet him at another place while her husband was out of town. He denies having ever touched her or kissed her. He denies having told her he gets what he wants, and he denies ever having made a comment to her about her breasts. He also denies drinking on the property though the evidence indicates he did. Mr. Lloyd had a very selective memory at the hearing, however, he does admit to having 19 a temper and to having yelled at Petitioner from time to time. Taken as a whole, however, there is insufficient evidence of record to support a conclusion that Mr. Lloyd sexually harassed Ms. Cremeens. To be sure, he did not always behave like a gentleman toward her, but it cannot be said his conduct constituted sexual harassment, and it is so found. 46. Once Petitioner was terminated, she became despondent and withdrawn and pushed family and friends away. Petitioner was terminated on November 27, 1995, but did not file her claim for discrimination until September 1996, almost ten months later. She delayed filing her complaint because she was in shock and embarrassed. She lost self-esteem and self-confidence and was afraid her marriage would be jeopardized if her husband found out the particulars of the termination. 47. Dr. Glenn D. King, a clinical psychologist whose specialty is forensic psychology, reviewed the materials relevant to Petitioner's claim against HP Tampa and did his own personal evaluation of the Petitioner relating to her claim of psychological harm resulting from her termination. 48. One of Dr. King's major opinions was that Petitioner had a longstanding psychological disorder stemming from childhood resulting in demonstrated histrionics, flirtatiousness, and a misperception of the motives of others. She has had an extraordinary number of chaotic events throughout her life that makes her no different after her discharge than before. Her 20 previous psychiatric history is lengthy reflecting professional mental health care at age 28 because of physical, emotional, and sexual abuse by her husband which caused her to leave home and Move to Tampa. The significance of this is that the psychological difficulties which she claims were caused by her discharge existed years before this incident and have resulted in her being in counseling for years prior to the termination. Her medical records indicate she has been taking psychotropic medications for years. 49. Dr. King also notes that though Petitioner mentioned her termination in the first counseling session she had after that incident, the major thrust of her complaints dealt with Marriage and family problems. 50. After Petitioner was terminated at the Silver dollar, she got a job at another lounge for about two months earning $10 per hour before she was fired. She then took another job for eight months before being hired at a Golden Corral for two years. She was let go from that job in August 1997 and drew unemployment compensation at $100 per week for five months. She opened another lounge, Angel's Place, in October 1997. This position lasted only a short time, after which she went to work for Old JR's Steak House where she earned $400 per week from January 5, 1998 to March 1, 1998. She then worked for the Old Florida Pub in Naples for five months before starting at Target stores and is currently employed by Target Stores. 21 51. Petitioner is seeking back wages for the period from when she was terminated in 1995 to the present and for five years forward at the rate she was getting less what she earned in the interim. In addition to the sums she earned from the various jobs she held, she also sold off household goods and had between $30,000 and $40,000 in gambling income, a part of which went into the costs of opening Angel's Place. All of this income was reported to the IRS. 52. Petitioner also seeks payment of $50,000 which represents the equity in her home which was lost to foreclosure in 2000, almost five years after her termination by HP Tampa. Some time after her termination by HP Tampa, Petitioner was declared eligible on her husband's insurance, yet she seeks to have HP Tampa also pay for her medical insurance. 53. According to Melissa Mancini, human resources director for Cornerstone Hospitality Group, Petitioner was never an employee of Cornerstone, but her office prepared the response to the Commission on Human Relations regarding Petitioner's claim. It would appear that there was some confusion as to who was responsible for the response, but ultimately, the requested information was forthcoming. When the Petition for Relief was received, it was sent to the corporate office of Cornerstone because Cornerstone was handling the sale of the property. Cornerstone admits to no liability regarding Petitioner's claim. 22
Conclusions For Petitioner: Angel Cremeens, pro se 5351 Hemingway Lane, West Apartment 506 Naples, Florida 34116 For Respondent: David P. Thatcher, Esquire Chamberlain, Hrdlicka, White, Williams and Martin 191 Peachtree Street, Northeast Ninth Floor Atlanta, Georgia 30303-1747
Recommendation Based on the foregoing Findings of Fact and Conclusions of 27 Law, it is recommended that the Florida Commission on Human Relations enter a Final Order reflecting a determination of No Cause regarding Petitioner's claim of discrimination and Petition for Relief. DONE AND ENTERED this & day of July, 2001, in eel Jha NOLD POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Tallahassee, Leon County, Fl Filed with the Clerk of the Division Administrative Hearings this be aay of July, 2001. COPIES FURNISHED: Angel Cremeens 5351 Hemingway Lane, West Apartment 506 Naples, Florida 34116 David P. Thatcher, Esquire Chamberlain, Hrdlicka, White, Williams and Martin 191 Peachtree Street, Northeast Ninth Floor Atlanta, Georgia 30303-1747 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 28 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The Respondents, Sandra Hoskins and Michael Mancuso, (the licensees), hold license number 62-957, Series 4 beverages by the drink for consumption on the premises of Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. Sweethearts is known as a bar where, in addition to buying alcoholic beverages, the mostly male patrons can watch "exotic dancing" on stage and pay $5 plus tip for a "lap dance." The dancers are physically attractive females dressed in underwear or "T-back" bathing suits. 1/ They are engaged by the management of Sweethearts to perform at Sweethearts. As they dance on stage, the disc jockey on duty introduces them by their stage names to the patrons present and encourages the patrons to ask the dancers to perform "lap dances" for them personally. The dancers also directly solicit "lap dances" from the customers. At the end of each shift, each dancer "tips out" $10 to the "house," i.e., pays the licensees $10, and "tips out" $5 to the disk jockey. As evidenced by what took place at Sweethearts on April 13 and August 25, 1989, a "lap dance" typically lasts for one song played by the disk jockey. The dancer escorts the patron to one of the booths lining the perimeter walls of the bar area, sits the patron down near the edge of the booth bench and begins "dancing." During the "dance," which is performed to the rhythm of the music, the dancer rubs various parts of her body, including the genital area, buttocks and breasts, against various parts of the body of the customer, including his genital area and face. Although the customer remains fully dressed during the "dance," and the dancer does not remove any clothing (i.e., she remains dressed either in underwear or in her "T-back" bathing suit), the "dance" is intended to simulate various sex acts, and purpose of the "dance" to arouse the customer sexually. Sometimes, the "dancer" fondles herself and acts as if she herself is becoming sexually aroused by the "dance." Sometimes, the customer rubs the breast area of the "dancer" or grabs her buttocks in the area of the anal cleft, and the "dancers" typically do little to stop or deter this behavior. Although the "lap dancing" occurs in a part of the bar where the lighting is red and subdued, it is highly implausible that the licensees, if on the premises, or the licensees' representative(s) on the premises would not know that the "lap dancing" described above was taking place on the premises. It is open and notorious. There was some evidence that there might be a nominal official policy at Sweethearts prohibiting patrons from touching the dancers. But the evidence is clear that management "winks at" violations of this official policy, if there indeed is one, and management policies in place at Sweethearts encourage the dancers to allow the patrons to touch them. (Allowing it to continue increases the chances of getting tips from customers such as these.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking license number 62-957, Series 4-COP, issued to the Respondents, Sandra Hoskins and Michael Mancuso, d/b/a Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. RECOMMENDED this 25th day of October, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1990.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the facts stipulated to by the parties, the following relevant facts are found: Prior to her employment with the respondent, petitioner had work experience in waitressing, bookkeeping, operating a wine and beer bar and operating a grocery store. At all times relevant to this proceeding, petitioner was married and had three children. Respondent Jax Liquors, Inc. (Jax) owns and operates a retail liquor business which is' divided into package store operations and lounge operations. Though its lounges are generally located adjacent to a package store, each is a separate entity having its' own management structure. There are 35 package stores employing 198 males and 199 females, and 11 lounges with 135 employees, 87 percent of which are female. While sales figures for the package stores range from $1.5 to $4 million per year, the lounges' sales figures are approximately $50,000 per year. Because of the greater volume of inventory, customers, employees and paper work, promotion of employees to the management level in the package stores takes a longer period of time. Employees in the lounges can move up from the position of cocktail waitress to assistant manager or manager in a short period of time because of the less demanding nature of the work. The employee turnover rate in the lounges is eight times higher than that of the package stores. Lounge employees tend to be younger and less settled and career-oriented than package store employees. On or about February 22, 1982, petitioner was hired by Jax as a cocktail waitress at the Jax Lounge on the Apalachee Parkway in Tallahassee. She was trained as a cocktail waitress for approximately two weeks, and when the assistant manager was promoted to manager, petitioner began training as an assistant manager. During her months at the Apalachee Parkway lounge, petitioner was a good worker with no complaints or problems. On or about March 24, 1982, petitioner was transferred to the Jax lounge on Thomasville Road in Tallahassee to serve as an assistant manager. On July 9, 1982, she was promoted to the position of manager at that lounge. One coworker, a cocktail waitress, described petitioner as a strict, but good manager with no scheduling, customer or staff complaints. Another coworker, who became the assistant manager when petitioner was promoted to manager, described petitioner as a hard worker but overbearing and bossy, with some scheduling problems and frequent tardiness. A similar description of petitioner was provided by the former manager of the Thomasville Road lounge. A frequent customer at the lounge described petitioner as competent and congenial with customers, and an energetic worker. Petitioner replenished the lounge supplies from the adjoining package store. The manager of the package store felt that she did not have a good understanding of the inventory and supplies she needed at the lounge. On or about July 20, 1982, approximately two weeks after petitioner was promoted to the position of lounge manager, John Chern was promoted to the position of Tallahassee District Supervisor thereby becoming petitioner's direct supervisor. At about that same period of time, the Tallahassee lounges were not operating at a high enough profit and the District Manager instructed Chern to make certain changes in operation. Among the changes were the addition of personnel bartenders and cocktail waitresses, so as to provide better service to the lounge patrons. Mr. Chern told his supervisor, the District Manager, that he had run into problems with petitioner and had experienced difficulty in obtaining cooperation from her in implementing the new schedule. Mr. Chern had also heard complaints about petitioner from other employees of both the lounge and the adjoining package store regarding scheduling and her treatment of her employees'. He felt that her general overall performance as a lounge manager was "weak." Petitioner admits that she felt and told Mr. Chern that she knew it would be difficult to work with him and that she knew if he became her supervisor, she would be fired. Petitioner felt that Mr. Chern was overly strict, and resented the fact that he would call her at home during her off- hours to discuss lounge business. John Chern has been employed with Jax Liquors since 1971, having started as a stock clerk. On August 9, 1982, Mr. Chern discharged petitioner from her employment with Jax Liquors. In explaining the reason for her discharge, Mr. Chern made reference to "outside obligations, your husband and family..." or "family and other obligations." On the following day, Mr. Chern filled out a form explaining the reason for petitioner's discharge as "not right person to run lounge, poor attitude with customers, did not take supervision or work with employees." There were no written reprimands in petitioner's personnel file. While it is the policy of respondent to issue written reprimands for nonmanagerial employees, more is expected from an employee at the managerial level and written reprimands are not required. After petitioner's termination, the assistant manager, a married female, was promoted to the position of lounge manager. Petitioner presented raw data or "head counts" derived from the personnel files of respondent in an attempt to demonstrate that sex and/or marital status had an effect upon the likelihood of involuntary discharge. However, the chosen categories of persons (i.e., males -- without disclosure of their marital status, women with children -- without disclosure of their marital status) were not well-defined and were overlapping. In addition, no statistical analysis was applied and there is thus no statistical significance to these head counts or raw data. No inference can be raised from this data that either gender or marital status was a causative factor in any involuntary termination. Applicants for employment at Jax Liquors are required to list their marital status, number of children, ages of children and who will care for the children. The purpose of these questions is to put the applicant on notice that the hours of employment are often unusual and are subject to sudden change. Lounge employees are also required to sign a form stating their agreement to be reassigned to any lounge and to work any position assigned at the rate of pay for that position. Respondent occasionally requires lounge employees to work at different lounges in different positions when the volume of business anticipated requires additional staffing. Lounge employees are generally able to make more money with a greater volume of customers.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition for relief filed by Angela Portera against Jax Liquors, Inc. be DISMISSED. Respectfully submitted and entered this 12th day of July, 1985 in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1985. COPIES FURNISHED: Virginia Daire 118 N. Gadsden Street Tallahassee, Florida 32301 Douglas W. Abruzzo, with Donald L. Tucker, P.A. Suite 804 Lewis State Bank Building Tallahassee, Florida 32301 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Suzanne Oltman Clerk of the Commission Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to these proceedings, Respondent, doing business as The Knight Out, was the holder of alcoholic beverage license number 72-79, series 1-COP. Prior to the hearing . . . in this cause, Respondent had turned in his license to the Petitioner. To the rear of the licensed premises, Respondent operated a bottle club known as The Knight Club. The Knight Club is attached to and shares restroom facilities with The Knight Out. On March 27, 1975, Respondent was served with a "Notice to show cause why beverage license should not have civil penalty assessed against it or be suspended or revoked" on the grounds that on Sunday, January 26, 1975: his employee, Vicki Lynn Williamson, at approximately 2:00 am., did sell at the licensed premises, an alcoholic beverage, a can of Budweiser beer, to beverage officer L. E. Williams during the time that the sale and consumption of alcoholic beverages is prohibited, in violation of City of Perry Ordinance 394 enacted pursuant to F.S. s. 562.14; at approximately 4:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 5:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 6:05 a.m., he refused to admit to the licensed premises beverage officer Jack Garrett, while in the performance of his official duties, contrary to F.S. s. 562.41; and at approximately 6:05 a.m., he had in his possession, custody and control, at the licensed premises a partially full 4/5 quart of Smirnoff Vodka, an alcoholic beverage not authorized to be sold by him, in violation of F.S. s. 562.02. Beverage officer L. E. Williams went to The Knight Out the weekend of January 24, 1975, in order to conduct an undercover investigation of the licensed premises. He observed the Respondent, between 11:30 p.m. and 12:00 a.m. on January 24th, remove four cases of beer from The Knight Out and place them into a small room in The Knight Club portion of the premises. At about 1:00 a.m. on January 25th, Williams paid a $2.00 cover charge, entered The Knight Club and remained there until 6:00 a.m. On Saturday night, January 25th, beverage officer Williams again went to The Knight Out and, at about 11:30 p.m., again observed Respondent moving five cases of beer from The Knight Out to the rear portion, The Knight Club. Williams entered The Knight Club during the early hours of January 26, 1975, carrying a can of beer with him. He left at approximately 2:30 a.m., met with other beverage agents, and returned to The Knight Club at about 3:45 a.m., paying the cover charge of $2.00. At 4:00 a.m. and again at 5:00 a.m. on January 26, 1975, Williams purchased from Respondent Poppell cans of Budweiser beer at seventy-five cents per can. Williams retained control of the two beer cans and at about 6:30 a.m. he tagged them as evidence. They were admitted into evidence at the hearing as Exhibits 4 and 5. At approximately 6:05 a.m. on January 26, 1975, beverage officer Jack Garrett, along with several other law enforcement agents, knocked on the front door of The Knight Club seeking entrance thereto. Respondent told Garrett to get in front of the peephole on the door so that he could see who was there. Garrett, who had known Respondent for some fifteen years, testified that he showed his identification card to Respondent through the peephole, whereupon Respondent replied that he would not let him in. Beverage officer T. A. Hicks, present with Garrett at the time, confirmed these events. Respondent and two other witnesses present at the scene testified that Respondent asked the persons at the front door to identify themselves, but that no response was received. Shortly thereafter, Officer Garrett, along with other law enforcement officers, went around to the other side of The Knight Club and entered, without knocking, the ladies rest room which led to the inside of The Knight Club. Once inside, they met Respondent leaving a small room with a handful of liquor bottles. One such bottle was seized - - a partially filled bottle of Smirnoff Vodka - - and was received into evidence at the hearing as Exhibit 6. Shirrell Woodalf testified that she had come to The Knight Out on the morning in question with another couple. When the other couple left, they gave her their bottle of Smirnoff Vodka. She then gave the bottle to Respondent to keep for her in his office. Woodalf identified Exhibit 6 as being the same bottle as that left with her and given to Respondent. Four witnesses who often frequented The Knight Club testified that patrons of the Club always brought their own beer or other alcoholic beverages into the Club. Respondent would cool their beer for them and keep their bottles in his office if they so desired. Respondent sometimes charged a small fee for cooling the beer and he sold setups for mixed drinks. These four witnesses never saw Respondent sell either beer or other alcoholic beverages in The Knight Club.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that: Paragraphs 1 and 5 of the notice to show cause be dismissed; Respondent be found guilty of violating F.S. ss. 562.14 and 562.41, as set forth in paragraphs 2, 3 and 4 of the notice to show cause; and Respondent's alcoholic beverage license be revoked. Respectfully submitted and entered 26th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles Nuzum Director Division of Beverage 725 South Bronough Street Tallahassee, Florida Charles Tunnicliff, Esquire Department of Business Regulation 725 South Bronough Street, Room 210 Johns Building Tallahassee, Florida 32304 Conrad C. Bishop, Jr., Esquire Weed & Bishop P.O. Box 1090 Perry, Florida 32347
The Issue This case concerns the issue of whether Respondent's beverage license should be suspended, revoked or otherwise disciplined for permitting prostitution activity on his licensed premises. At the formal hearing the Petitioner called as witnesses John Harris, Kelvin Davis, Carlos Bauxalli, Lewis Terminello, Hugo Gomez, Louis Viglione, Keith Bernard Hamilton, and Alfonso Scott Julious. Respondent called as witnesses Isaac Dweck, Gary Arthur, Irene Madden, Collins Jones, Mary Scott, Debbie Heenan, Judy Pearson, Joe E. Clements, Cecil Rolle, and the Respondent himself, Eddie Lee Pittman. Petitioner offered and had admitted a videotape which was viewed during the hearing. Respondent offered and had admitted one exhibit. Petitioner also offered a composite exhibit containing police reports relating to the licensed premises for the years 1981 and 1982. That composite exhibit was admitted as hearsay to corroborate the testimony of the police officers relating to the reputation of the licensed premises. These police records were of very limited probative value and no finding of fact was based upon these records. Neither party submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer.
Findings Of Fact At all times material to this proceeding the Respondent, Eddie Lee Pittman, was the holder of beverage license No. 23-371, Series 2-COP. The license is issued to the licensed premises at 1772 N.W. 79th Street, Miami, Dade County, Florida, and was originally issued to Respondent on October 6, 1965. On the evening of March 22, 1983, Beverage Officer Kelvin Davis visited the licensed premises, Eddie's Dive Inn, in an undercover capacity to investigate possible prostitution activity in the licensed premises. Officer Davis was accompanied by Beverage Officer Eddie Bauxalli. After entering the licensed premises Officer Davis was approached by a white female named Elnora Moore who engaged him in conversation. The conversation led to a discussion of voter registration cards and Ms. Moore stated that a voter registration card could get you out of jail on a misdemeanor charge. Officer Davis asked why she needed a card for that purpose and Ms. Moore said because of solicitation. She then asked Officer Davis if he would like to be solicited and asked how much money he had. He responded that he had twenty dollars and she said that would get him a "straight." "Straight" is slang or street language for sexual intercourse. He agreed to the price but told her he also had a friend (Officer Bauxalli). Ms. Moore offered to service both men for $100. Officer Davis and Officer Bauxalli agreed to this offer and the three of them prepared to leave. The conversation between Ms. Moore and Officer Davis took place next to the bar where the officers were seated. This was approximately three to five feet from the cash register where the bartender on duty was working. The conversation took place in a normal tone of voice. As Officers Davis and Bauxalli and Ms. Moore began to leave, a white female named Peggy Schultz yelled across the bar to Officer Bauxalli and asked where he was going. Officer Bauxalli yelled back that he was going to have a good time. In response, Ms. Schultz yelled back "How can you have a good time without a date?" Officer Bauxalli responded that he would figure something out. At this point Ms. Schultz walked over to Officer Bauxalli. Ms. Schultz asked Officer Bauxalli if he wanted a "date" and he asked what is a "date." She responded that a "date" is a "straight" for $20 or a "straight" and a "blow job" for $25. He agreed to a "date" and Ms. Schultz then told him to drive around to the back and she and Ms. Moore would meet them at the back door. She also stated that the owner did not like the girls to go out the front door. Officers Bauxalli and Davis then left the bar, drove around to the back door of the licensed premises and picked up Ms. Moore and Ms. Schultz, who were waiting just inside the back door of the lounge. While Officers Bauxalli and Davis were in the licensed premises, the bar was pretty crowded and there was a lot of noise from people talking. At the time Ms. Schultz solicited Officer Bauxalli, she spoke in a normal tone of voice while they stood approximately four or five feet from the cash register on the bar. Ms. Schultz was dressed in a low-cut blue silky dress that was made of a material which you could easily see through. She was wearing only panties underneath the dress. The owner, Mr. Pittman, was observed in the licensed premises on the evening of March 22, but there was no evidence that he observed or overheard any of the discussions between the two beverage officers and Ms. Schultz and Ms. Moore. On the evening of September 17, 1983, at approximate1y. 10:A5 p.m., Beverage Officer Louis J. Terminello went to the licensed premises in an undercover capacity. Immediately upon entering the licensed premises he was approached by a white female named Michelle Orfino. The bar was pretty crowded and there were a number of females in the bar and poolroom area who by their dress appeared to be prostitutes. These women were mingling with the men at the bar and in the poolroom area. A number of couples were exiting through the back entrance. When Ms. Orfino approached Officer Terminello, she walked up to him and asked if he was looking for a "date." He asked her what a "date" was and she said "a blow job." She then asked if he wanted one and Officer Terminello responded "yes." She told him the price would be $20 plus $5 for the room. As they had been talking Officer Terminello, accompanied by Ms. Orfino, walked into the poolroom area. After agreeing to the price, Officer Terminello took Ms. Orfino by the arm and started to walk out the front door of the lounge. She stopped him and said that they had to use the back door because Eddie does not allow them to leave through the front door. She then told him to drive around back and Officer Terminello responded that his car was just outside the back door. She then walked with him out the back entrance and into the parking lot. As they walked to his car Officer Terminello observed the Respondent, Eddie Pittman, in the parking lot. After driving away, Officer Terminello placed Ms. Orfino under arrest. Ms. Orfino was dressed in a very low-cut latex body suit. For at least three nights prior to September 17, Officer Terminello, while on surveillance, had observed a continuous pattern of a patron entering the bar, coming back out and driving his car to the rear entrance. A woman would then come out the back door, get in the car and they would drive away. Twenty minutes or so later the car would come back and the girl would get out and go back in. After the arrest of September 17, Officer Terminello returned to the bar in the early morning hours of September 18 to arrest two other women for prostitution. The Respondent had not been advised of the arrests on September 17. On the evening of September 15, 1983, Beverage Officer Louis Viglione went to the licensed premises, Eddie's Dive Inn. After entering the licensed premises he took a seat at the bar near the rear entrance. Shortly after entering, he was joined by two black females named Veronica and Angie. He purchased a beer for each of the two women and the three of them engaged in conversation about good times, good loving, and Pink House. The Pink House is a boarding house in the area where the licensed premises is located and is used by prostitutes for "dates." A "date" is a slang or street term used commonly by prostitutes to refer to sexual intercourse or other sexual acts for pay. During this conversation, Veronica stated that one hour with her would cost $40 or $50 and Angie stated that she charged $100 an hour. As an excuse, Officer Viglione then stated that he did not have enough money because he wanted two women at once. He remained in the lounge approximately one more hour and left. On this particular evening Veronica was wearing a short white dress and Angie was wearing a blue print dress with white stockings. Both were dressed in what Officer Viglione described as normal dress. Several other women in the lounge were dressed in a very provocative manner and appeared by their dress to be prostitutes. The lounge was approximately 3/4 full of patrons, but it was not particularly noisy or boisterous. There were also several women outside the front and rear entrances of the licensed premises who appeared to be prostitutes. The area where the licensed premises is located is an area which has a visible concentration of prostitutes and has a reputation as an area where prostitution is prevalent. At approximately 9:30 p.m. on September 16, 1983, Beverage Officer Keith Bernard Hamilton entered Eddie's Dive Inn. Upon entering the lounge, Officer Hamilton took a seat at the west end of the bar. There were approximately 40 or 50 male patrons in the lounge and at least 30 women. The women were scantily dressed in very revealing clothes and were observed by Officer Hamilton to be moving around the bar stopping and talking with the men. Several of the women left the bar after talking to one of the men who also left the bar. While seated at the bar, Officer Hamilton was approached by a young black female named Anna. Anna had been talking to a white male seated next to Officer Hamilton. She asked Officer Hamilton what he was interested in tonight. He asked what she had and she asked if he wanted to fuck. She also stated that for $35 plus $5 for the room she would give him a "suck and fuck." He said he would wait for a while and Anna left but returned several times during the evening. After Anna left, another woman walked up to Officer Hamilton and asked if he dated. He was short with her and she moved over and began talking to the white male seated next to him. A few minutes later, Officer Hamilton went to the bathroom and was stopped by a black female named Carol Lawrence. Ms. Lawrence stated that she needed money and asked if he could help her out. Officer Hamilton asked what did she have and Ms. Lawrence responded "a suck and fuck for $35." Officer Hamilton agreed to this but said he wanted to wait a while. She then left, but approached him at least three more times that evening. On the evening of September 16, 1983, there were three security guards at the licensed premises. They primarily remained outside where they regulated the crowd outside the lounge. One of the guards told one of the females that she shouldn't leave with a guy but should wait inside the rear door. The guard did not object to the woman and man leaving in the man's car. On this particular evening, the Respondent was present at the licensed premises until approximately 11:00 p.m. He was in and out of his office during the course of the evening. On September 17, 1983, at approximately 9:30 p.m. Officer Hamilton returned to the licensed premises, Eddie's Dive Inn. When Officer Hamilton entered the lounge, the Respondent was seated at the bar. The activity in the bar was about the same as the night of September 16, and there was a smaller crowd. There were about 20 women in the bar. These women were walking around the bar talking to the men. There was a man seated next to Mr. Pittman who was being kissed by one of the women. After kissing the man she moved on and began talking to another male patron. Shortly after entering the lounge one of the women in the lounge looked at Officer Hamilton and winked. Later, when Officer Hamilton was in the rear of the lounge near the bathrooms, be observed this same woman standing near the rear entrance. He asked her where she was going and she responded that she would be back. She then offered him a "suck and fuck" for $20 plus the cost of the room. As she walked out the rear entrance Officer Hamilton agreed to the offer. That same evening Officer Hamilton was again approached by Anna whom he had met the previous evening. She asked if he was ready and again told him the price of a "suck and fuck." He agreed and she told him to leave out the front door and she would wait around back. Officer Hamilton left the lounge and drove his car to the rear entrance where Anna was waiting just inside the screened door of the back entrance. On the evening of September 15, 1983, at approximately 9:15 p.m., Beverage Officer Alfonso Scott Julious entered the licensed premises. There were several men seated inside the bar and several women were walking around the bar. The women were dressed casually and some were wearing short dresses which were low cut in the front. After entering the licensed premises Officer Julious observed women from time to time leave the bar with a man and then come back. Each of the women exited through the rear door. At approximately 9:45 p.m. Officer Julious was approached by a white female named Gail Sylvia James. She asked if he wanted a "date" and he said what is a "date." She then said that she would "fuck him and suck him" for $30. He responded that he would be around for a while and would get back to her. Officer Julious left the lounge at approximately 10:30 p.m. During the evening Officer Julious had overheard other men being solicited and observed at least five men leave with women. On this evening Officer Julious considered the women's dress to be casual, nice dresses. Officer Julious returned to the licensed premises at approximately 9:00 p.m. on September 16, 1983. After entering the lounge he was approached by a white female named Patricia. She asked him if he wanted a "date" and he asked "what is a "date?" She then said she would fuck him for $30. Officer Julious responded that he would be around and would get back to her. Some time later in the evening Gail James, whom he had met the previous night, approached Officer Julious and asked if he was ready for a "date." She said she would go half and half, "suck and fuck" for $30. He told her he would be around for a while. Officer Julious was also approached by a woman named Mindy Jo Gelfin, who asked if he wanted a "date." He asked "What is a date?" and she responded "half and half, fuck and suck" for $40. He also did not accept this offer. Officer Julious left the licensed premises at approximately 10:45 p.m. On Saturday, September 17, 1983, Officer Julious returned to the licensed premises at approximately 9:05 p.m. The Respondent, Eddie Lee Pittman, was in the lounge. Immediately after entering the licensed premises, Officer Julious was approached by Mindy Gelfin, who asked if he was ready for a "date." Officer Julious stated that he would be around all night and Mindy said she would come back. Later, Mindy returned and asked if he was ready and he responded "yes." He asked if they could go to the Holiday Inn and she asked if he was a cop. Officer Julious said "Do I look like a cop?" She then asked if she could pat him down. He said "yes" and she patted him down. She then said that she wanted to go in a friend's car. She borrowed the car and drove to the Holiday Inn where she was arrested. At the time of her arrest Mindy Jo Gelfin was residing with Collins Winston Jones and his girlfriend. At the time of the final hearing, Mindy Gelfin was continuing to live at Mr. Jones' residence. Mr. Jones' girlfriend had allowed her to move in. Mr. Jones is the manager of Eddie's Dive Inn. On September 29, 1983, Detective Hugo Gomez of the Metropolitan Dade County Police Department went to the licensed premises, Eddie's Dive Inn. Detective Gomez was accompanied by Detectives Manny Gonzalez and Ray Gonzalez. Detective Gomez stood at the west end of the bar and his two partners sat at the bar next to him. After they ordered a beer, they were approached by a white female named Catrina Gibides. She sat down between the two officers who were seated. She asked what they were doing and told Detective Gomez he looked like a cop. He then pulled up his pants legs to show he was wearing no socks and she said "you can't be a cop" and grabbed his groin. She then began playing with Manny Gonzalez's leg and asked if they wanted a "date." She was wearing a very loose chiffon type outfit and her breasts were barely covered. The officers who were seated had been pretending not to speak English and Ms. Gibides asked Detective Gomez to ask Manny Gonzales if he wanted to go across the street to a motel with her. She said that she would perform intercourse and fellatio for $25 plus $5. She then called over another white female named Lisa Brown, who also began talking about going across the street to a motel. Lisa Brown said her price was $25 plus $5 for the room. They then discussed going in different cars. During these conversations the bar was crowded and Eddie Pittman was in the lounge approximately 8 to 10 feet from where the officers were located. It was pretty loud in the bar. There were also barmaids working behind the bar. Isaac Dweck is a regular patron of Eddie's Dive Inn. He goes there primarily on Sunday afternoons to watch football and shoot pool. He is almost never in the licensed premises after 9:00 p.m. and averages going to the lounge four or five times a month. He has never been solicited for prostitution in the lounge and has never overheard someone else being solicited. Gary Arthur goes to Eddie's Dive Inn two or three times a week and generally leaves some time between 7:30 and 9:00 p.m. Once or twice he has stayed until 11:00 or 12:00 p.m. He has never been solicited for prostitution and has never overheard anyone else being solicited. He has been going to Eddie's Dive Inn for five or six years. The Respondent has a policy against drugs, fighting, solicitation, and profanity and also has a dress code. He employs 11 full-time employees at the lounge and three or four of these employees are security guards who work at front and back doors. The Respondent has a closed circuit television system with cameras on the cash register and pool room area. The screen is in Respondent's office. Over the past 12 years the manager, Collins Jones, has barred 12 or 13 women from the bar after he heard them soliciting in the bar. In the twenty years he has operated Eddie's Dive Inn, the Respondent has barred approximately 20 women from coming into the licensed premises because of prostitution. Once the women are arrested for prostitution, they are barred from the premises. There are signs posted in the bar prohibiting soliciting. Irene Madden works as a barmaid at Eddie's Dive Inn. She has been instructed to not serve known prostitutes and that if she heard someone soliciting she should diplomatically ask them to not do that and inform Mr. Pittman or the manager. Mary Scott works as a barmaid at Eddie's Dive Inn. She has heard women solicit in the lounge for prostitution. She does not have the authority to ask someone who solicits for prostitution to leave the premises. She does have authority to ask people to leave who are in violation of the dress code. In September, 1972, the Respondent was charged in an administrative proceeding against his license with permitting prostitution on the licensed premises. He was also charged criminally with permitting prostitution. Respondent paid a $350 administrative fine and his license was placed on probation for the remainder of the license year. He pleaded guilty to the criminal charge.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of $1,000 and suspending Respondent's beverage license for a period of ninety (90) days. DONE AND ENTERED this 9th day of November, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1983. COPIES FURNISHED: William A. Hatch, Esquire Gary R. Rutledge, Secretary Department of Business Department of Business Regulation Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Arthur M. Garel, Esquire 40 Southwest 13th Street Miami, Florida 33130 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether or not on or about the 20th day of January, 1976 the Respondent, Franklin D. Boockholdt, licensed under the Beverage Laws as a vendor did unlawfully make a false statement, to wit: said premises sought to be licensed, contains and will maintain at all times all necessary equipment and supplies for serving full course meals regularly, on an affidavit for special restaurant license, in violation of Section 837.012, F.S., thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to the Notice to Show Cause, the Respondent, Franklin D. Boockholdt, was and is the holder of License No. 55-11, a Series 2- COP, held with the State of Florida, Division of Beverage. On January 20, 1976, Beverage Officer, George Sterling, arrived at the licensed premises of the Respondent known as Gibbs Night Club, located at 511 South Wood Street, Callahan, Nassau County, Florida. The purpose of this visit was to inspect the aforementioned premises as an element in considering the application which the Respondent, Franklin D. Boockholdt, had made for a special restaurant license to be held with the Division of Beverage. Prior to the time that Officer Sterling arrived at the subject premises, the Respondent had gone to the Airway's Facility of the Federal Aeronautics Administration at Hilliard, Florida and picked up a number of dishes from the cafeteria on that facility. These dishes were owned by a vendor whose name is Jet Services. The racks in which the Respondent carried the dishes away were the property of the Federal Aeronautics Administration. The Respondent then took the dishes, which would include flatware, to the subject premises and these dishes and flatware were part of the inventory which was shown to Officer Sterling in the course of an inspection held on January 20, 1976 at the subject premises. While checking the subject premises on January 20, 1976, Officer Sterling, among other things, was looking to establish that there were sufficient accommodations for serving 200 or more patrons at tables. His inventory on January 20, 1976 revealed 150 sectional trays, 50 plates, and sufficient forks, knives, spoons and glasses to serve the 200 people. Once Officer Sterling had completed his inventory he gave the Respondent Boockholdt an affidavit which was to be completed by the Respondent and given back to Officer Sterling as one of the preconditions to approval of the license application for a special restaurant license. The Respondent took the affidavit and completed its parts and appeared before a notary public to have the affidavit sworn and subscribed to by the notary public. The notary public was Dorothy Beasley. She notarized the subject affidavit and witnessed the signature of the Respendent. This activity took place on January 20, 1976. In addition, she read the document in full orally in the presence of the Respondent and asked the Respondent if he would swear to the affidavit. The Respondent replied "yes". The Respondent then signed his name to the affidavit. The affidavit in question is Petitioner's Exhibit #2 admitted into evidence. Within the affidavit is the statement under the number seven (7). Number seven (7) says: "Said premises sought to be licensed has, and will maintain at all times, accommo- dations for serving 200 or more patrons at tables;" The numerals 200 had been placed in the blank with the knowledge of the Respondent. The affidavit was then returned to Officer Sterling on January 20, 1976, at which time he affixed his signature as having checked the above described restaurant and found the statements in the affidavit to be true. Two hours after the Respondent had picked up the dishes and flatware at the Airways Facility of the Federal Aeronautics Administration at Hilliard, Florida, he returned these items to that facility and they were inventoried in their entirety. Acting on a complaint filed with the Division of Beverage by Douglas M. Messick, the Manager of the Federal Aeronautics Administration at Hilliard, Florida, Officer Sterling returned to the licensed premises on February 9, 1976. When he arrived at the licensed premises, he made an inventory of the dishes and flatware. Among other things, he found 140 sectional trays, plates of sizes of from 10" to 12" in diameter, some of which had not been present in the January 20, 1976 inventory, miscellaneous knives, forks and spoons, and glasses and cups. There were sufficient numbers to meet the service for 200 of all items with the exception of glasses which were deficient in number. There were not sufficient numbers of cups, but there is a question about whether it was intended that coffee and tea be served with the meal at the time that the affidavit was being filled out on January 20, 1976. After inventorying the accommodations for serving on February 9, 1976, a report was made and the subject charges were placed.
Recommendation It is recommended that the License No. 55-11, Series 2-COP, held by the Respondent, Franklin D. Boockholdt, to trade at Gibbs Night Club at 511 South Wood Street, Callahan, Florida, be revoked.* * RO issue date of 2/22/77 was obtained from the docket sheet. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Dennis E. LaRosa, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Franklin D. Boockholdt P. O. Box 433 Hilliard, Florida 32046
The Issue The issue for consideration is whether Respondent's alcoholic beverage license should be disciplined because of the alleged misconduct outlined in the Notice to Show Cause filed by Petitioner.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Jose Manuel Acosta, was doing business at 425 Northwest 12th Avenue, Miami, Dade County, Florida, as La Romanita Cafeteria under a series 2-COP alcoholic beverage license number 23-03308. Orlando Huguet is an investigator with the Petitioner, DABT, and has had prior experience with the Coral Gables Police Department and as an investigator with the United States Air Force. During the course of his employment with the DABT, he has been involved in several undercover operations and is fully familiar with the appearance and properties of crack (rock) cocaine. He is also aware that it is a very addictive drug and that it is usually packaged in small cellophane bags but may come in other containers or not be packaged at all. During the period of mid-August to mid-October, 1987, Mr. Huguet, along with other law enforcement investigators (LEI) of DABT and agents with the Metropolitan Dade County Sheriff's Department and the Miami Police Department were involved in an undercover investigation of Respondent's place of business as part of an investigation of drugs in bars in Dade County. During the investigation, they would enter the premises in the afternoon or evening and attempt to purchase crack cocaine from the licensee, employees or patrons of the establishment. La Romanita's is primarily frequented by Spanish speaking customers. On August 28, 1987, Huguet entered La Romanita in an undercover capacity in the evening along with a confidential informant (CI). This confidential informant was utilized by Huguet in several undercover investigations. Huguet and the CI took seats at the bar counter and ordered drinks. Huguet observed the licensee, Jose Manuel Acosta, standing in front of him, behind the counter. Huguet overheard the CI ask Acosta if he (Acosta) had any drugs for sale today. Acosta commented that he had run out of drugs, but to try him tomorrow. Acosta continued to discuss drugs with Huguet, the CI, and other patrons. Subsequently, a black Latin male named Miguel approached Huguet and the CI and inquired if they were looking for drugs. Later on Huguet purchased cocaine ("perico" in Spanish) from Miguel outside the licensed premises. On August 29, 1987, at approximately 11:30 p.m., Huguet and the CI entered the licensed premises and observed the owner, Jose Manuel Acosta, sitting drown at a table with another man identified as Flaco. Huguet and the CI engaged Acosta in conversation which revealed that Acosta would provide one- half ounce of cocaine to the CI and Huguet at a future date. Subsequently, Huguet and the CI left the premises. On September 3, 1987, Huguet and the CI entered the establishment in the evening and approached the bar counter area and engaged in general conversation with a barmaid. Huguet observed a white Latin male, Tobacito, walk to the end of the bar counter, open a brown paper bag, and retrieve two pieces of suspected crack cocaine. Tobacito gave the suspected cocaine to a white Latin male in an open manner and the white Latin male gave Tobacito $20.00. Subsequently, Huguet instructed the CI to try to make a drug purchase from Tobacito. The CI approached Tobacito who reached into the same brown paper bag and took two pieces of rock ("piedra" in Spanish) cocaine and gave them to the CI in exchange for $20.00. Huguet witnessed this entire transaction and took the cocaine from the CI immediately after the drug transaction. Tobacito approached the table where Huguet and the CI were sitting, which is located on the east side of the premises. Tobacito negotiated a drug transaction with Huguet for $10.00 and then left the licensed premises, returning shortly thereafter with the cocaine. When Huguet received the piece of crack cocaine from Tobacito, he held it up to eye level, examined it, and then placed it in his front pocket. A short time later Huguet walked over to the bar counter, took a seat next to a patron named Warapito, and engaged in a general conversation about drugs. Warapito bragged that he sold the best rocks in town and stated they would enhance Huguet's sexual performance. During this conversation, Huguet retrieved the rock cocaine he had previously purchased and dropped it on the floor in front of several patrons. Warapito and another patron retrieved the cocaine and returned it to Huguet. This incident was observed by an employee, Papo, who is the son of the licensee, Jose Manuel Acosta. Thereafter, Tobacito came over to Huguet and Warapito and began to argue with Warapito over who sold the best rock cocaine. This conversation took place in front of several patrons and Papo. On September 4, 1987, Huguet entered La Romanita in the early afternoon and took a seat at one of the tables on the east side of the premises. Huguet engaged in conversation with an employee, Pepito, relative to cocaine. Pepito stated that he could get one-half ounce, but that he would have to make a phone call first since it was not on the premises. During this time, Huguet noted that Pepito did the duties and functions of an employee (serving patrons, working behind the counter, using the cash register and taking orders). Pepito proceeded to make the phone call and a short time later the licensee, Jose Manuel Acosta, entered the licensed premises carrying a large box which he gave to Pepito who took the box to the storage room. Within seconds Pepito exited the storage room, came to Huguet's table and handed him a baggie of cocaine wrapped in toilet paper. Huguet put the baggie on the table and unwrapped it to conf irm that it was cocaine. Huguet rewrapped the baggie, placed it in his right front pocket and handed Pepito $320.00. During this entire transaction, Huguet observed the licensee go by his table several times. On September 16, 1987, Huguet entered La Romanita at approximately 9:20 p.m. and observed that there were several patrons and two Latin female employees on duty. Huguet took a seat at a table located in the southeast area of the licensed premises and engaged in conversation with patron Tobacito. Huguet and Tobacito negotiated a cocaine transaction and Huguet gave $20.00 to Tobacito who exited the licensed premises, returning a short time later. Tobacito gave the crack cocaine to Huguet who held it up to eye level to examine. At this point, a patron, Jacquin, who was sitting at an adjacent table, offered Huguet a piece of aluminum foil in which to wrap the crack cocaine. Huguet took the foil from Jacquin and wrapped it around the cocaine. This transaction was observed by several patrons, as well as the two female employees. On September 18, 1987, Huguet entered the licensed premises and took a seat at the bar counter where he struck up a conversation with patron Tobacito. Tobacito asked Huguet if he wanted anything and Huguet responded that he was willing to purchase some cocaine. Tobacito stated that he had only one piece of crack cocaine left, but was willing to sell it for $20.00. Huguet agreed and Tobacito then left the licensed premises. Huguet approached Warapito and engaged in general conversation about cocaine. Warapito took a small piece of rock cocaine from his pocket and offered it to Huguet for $22.00. Huguet gave Warapito the $22.00 and in return received the rock cocaine. This transaction was observed by employee, Isabel, who had been waiting on the two patrons. Huguet noted that Isabel performed the functions and duties of an employee (waiting on customers, working behind the counter and using the cash register). A short time later Tobacito entered the licensed premises and handed Huguet a piece of rock cocaine. Huguet placed the cocaine on top of the bar counter and proceeded to examine it in plain view of employee Isabel. Huguet then placed the cocaine in a napkin, put it in his right front pocket, and paid Tobacito $20.00. On September 24, 1987, Huguet entered La Romanita and took a seat at the bar counter. Warapito approached Huguet and asked if he needed any rocks (cocaine). Huguet stated that he did and gave Warapito $20.00. This conversation took place in front of employee, Papo. Papo proceeded to leave the bar counter area, enter the women's restroom and lock the door. Another employee, identified as Chino, noted Papo's actions and advised Huguet that if Huguet ever wanted to "shoot up, snort up, or smoke up," that Chino would let him have the key to the women's bathroom. Huguet noted that Chino performed the duties and responsibilities of an employee (serving customers, working behind the counter and using the cash register). A short time later, Warapito reentered La Romanita and gave Huguet a large piece of rock cocaine. Huguet placed the cocaine on top of the bar counter, examined it, and proceeded to wrap it in a napkin in front of employees Chino and Alisa. Huguet stated that Alisa also performed the duties of an employee (waiting on customers, working behind the counter and using the cash register). Tobacito subsequently approached Huguet and handed him two pieces of rock cocaine which Huguet placed on top the bar counter and examined. He then wrapped the cocaine in a napkin. Alisa and Chino were in a position to observe this transaction as well. A short time later, Warapito and Tobacito began to argue over who sold the better rock cocaine. A few minutes later Huguet paid Tobacito $20.00 for the cocaine he had received and exited the licensed premises. On September 29, 1987, Huguet entered La Romanita and approached Tobacito who was sitting on a bar stool next to the counter. Tobacito told Huguet that he was sorry but that he had run out of rocks (cocaine). Huguet then called Warapito over to where he was sitting and asked him if he had any drugs. Warapito replied that he could get Huguet cocaine but would need $30.00 up front. Thereupon, Huguet handed him the money and Warapito exited the premises. This conversation took place in front of several patrons and an employee, Papo, who was standing behind the counter making change from the cash register. A short time later, Warapito entered La Romanita and handed Huguet two pieces of rock cocaine. Huguet took the cocaine, held it up to eye level to examine in front of several patrons and an employee, Chino, and then placed the cocaine in a napkin he had retrieved from the counter. On September 30, 1987, Huguet entered the premises and met with Warapito. Warapito offered to sell Huguet one gram of cocaine for $50.00 but stated that he would need the money up front. Huguet gave Warapito the money whereupon Warapito exited the premises. A short time later Huguet approached the bar counter and took a seat next to Tobacito. Tobacito advised Huguet that if he (Huguet) wanted any drugs that he (Tobacito) had two pieces of rock cocaine left and would sell them for $20.00. Huguet agreed to buy the cocaine whereupon Tobacito exited the premises. A short time later, Tobacito returned and presented the cocaine to Huguet in front of employees Alisa and Chino. Huguet took the two pieces of rock cocaine, examined them and made the comment that they were very dirty. Tobacito exclaimed that he had dropped the cocaine on the way back to La Romanita because he had been frightened when he had observed police officers nearby. Huguet then paid Tobacito the $20.00. A short time later, Warapito returned to the premises and stated that he had been unable to find any cocaine and returned the $50.00 to Huguet. On October 1, 1987, Huguet entered La Romanita and proceeded to the juke box area of the premises to have a conversation with Warapito. Warapito advised Huguet that he would try to obtain one gram of cocaine for him for $50.00. Huguet and Warapito discussed the drug purchase in further detail. Standing next to Huguet and Warapito was Jose Manuel Acosta, the licensee, who was in a position to hear the conversation. Subsequently, Warapito told Huguet that he thought he was a police officer. Huguet denied this allegation and then departed the licensed premises. On October 6, 1987, at approximately 12:15 p.m., Huguet entered La Romanita and approached Tobacito and Warapito at the bar where they were talking to employee Papo. Tobacito asked what Huguet wanted and Huguet responded that "twenty" would do. Huguet gave Tobacito the money and Tobacito exited the premises. Warapito subsequently told Huguet that he (Warapito) was going to secure a half gram for a friend of his and asked if Huguet wanted any cocaine as well. Huguet replied that he would like one gram and gave Warapito $50.00. A short time later, Tobacito reentered La Romanita and handed Huguet two rocks of cocaine in front of Papo. Huguet examined the cocaine at eye level, took a napkin from the bar counter and wrapped up the cocaine. A few minutes later, Warapito reentered La Romanita and gave Huguet back his money stating that he had been unable to locate any cocaine. All of the events referred to herein, with the exception of the drug purchase on August 28, 1987, took place on the licensed premises during business hours when other employees and patrons were present on the licensed premises. None of the employees or patrons who sold or delivered cocaine to Officer Huguet, or allowed others to do so, ever expressed any concern about any of the drug transactions and took no action to prevent or discourage drug transactions. The licensee, Jose Manuel Acosta, stated that he was neither present during most of the dates set out in the Notice to Show Cause nor did he hear or observe any drug transaction. He denied ever meeting or speaking with Officer Orlando Huguet about any cocaine transactions. He knew that drugs were easily obtainable in the area of town in which La Romanita was located, but did not believe that he had any drug problems on his premises. In light of the detailed testimony of Officer Huguet, which was recorded in his report, stating he and the CI spoke with Mr. Acosta on two occasions about purchasing cocaine and that on one other occasion Mr. Acosta was in a position to observe a cocaine transaction, Mr. Acosta's statements are not credible. Mr. Acosta did not perform polygraph examinations or background checks on his employees and did not use a security guard on the licensed premises. The premises contained no signs or other form of documentation revealing to patrons the policy of the management relative to drug possession, sale or usage. Instead, the only sign on the licensed premises stated that customers should not detain themselves if they were not going to consume. Mr. Acosta denied that Pepito, Isabel or Chino were his employees. Instead, he stated that he employed his wife, his son Papo, other relatives and occasionally people to help him lift things on his licensed premises. He did admit that Alisa was his employee for several weeks. His only policy concerning drugs was to tell his employees that it was illegal and to call "911" if there was a problem. He noted that he had received letters from the Division of Alcoholic Beverages and Tobacco but did not read them because he did not know English. At all times material to this case, Papo, Pepito, Isabel, Chino and Alisa were employees on the licensed premises of La Romanita. They performed the functions and duties of employees in that they served customers, worked behind the counter, waited on tables and used the cash register. The great majority of drug transactions related herein took place in plain view on the licensed premises of La Romanita. The exchanges of drugs and money in conjunction with the open conversations engaged in by employees, patrons and Officer Huguet demonstrated a persistent pattern of open and flagrant drug activity. The instances occurring at La Romanita were sufficiently open to put a reasonably diligent licensee on express notice that drug sales were occurring on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the alcoholic beverage license held by Respondent, Jose Manuel Acosta, No. 23-03308, series 2-COP, be REVOKED. RECOMMENDED this 4th day of February, 1988, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988.
Findings Of Fact At all times pertinent to this hearing, Respondent possessed a valid 4- COP alcoholic beverage license, No. 39-589, and operated The Stardust Bar, located at 2631 East Lake Avenue, Tampa, Florida Reylius Thompson has been a state beverage officer assigned to the Fort Lauderdale district office for approximately four years. He has attended beverage school and a drug enforcement administration course, police standards training, and other various courses in law enforcement. Based on his training and experience, he is familiar with the sight, smell, and appearance of marijuana and with its method of smoking and-handling. He is also familiar with the sight and taste of cocaine. At approximately 6:30 p.m. on June 23, 1983, Mr. Thompson entered the Respondent's bar at 2631 East Lake Avenue, Tampa, to investigate the alleged serving of alcohol to minors and the sale of controlled substances. He entered the bar by himself, but Agent Carol Houston and a Tampa Police Department Officer Collins were already inside. When he entered the bar, he spoke with Officer Collins near the disco seat and sat down in the same general area. When he and Collins sat down, a black male came up and asked them to move to another table, as he kept his "stash" there. Thompson and Collins did as requested and observed the same male lift up the top of the table and remove from the hollow, oval center part a brown paper bag. Thompson asked the individual what he had in there, and the individual replied "5-cent and 10-cent pieces of cocaine." These terms mean a "deck" or a "hit," or less than a gram. Five cents equals $5, 10 cents equals $10, in value. Thompson then asked to buy a 10-cent piece. In response, the black male opened the bag and pulled out a foil package which he gave to Thompson in return for $10 in cash. This substance was subsequently determined to be cocaine. The black male referenced above identified himself as "Chick." After Thompson got the cocaine from Chick, he and Officer Collins walked back to another booth. Thompson observed two partially smoked cigarettes on the table. He picked them up, placed them in a napkin, and put them in his rear left pocket. They were subsequently determined to contain marijuana. While in the bar, Thompson talked for a while with the disc jockey named "Bobby," subsequently identified as Robert O'Neill. Thompson had stepped into the deejay booth and started a conversation with Bobby, asking if he, Bobby, had any cocaine. Bobby replied that no he did not, but called over another man called "Black Man," who spoke with Bobby and then asked Thompson if he was the one who wanted cocaine. When Thompson asked what he had, Black Man said "5-cent pieces." Thereafter, Black Man left, returning shortly with three small foil-wrapped packages which he gave to Thompson. Thompson only wanted one of the packages, for which he gave Black Man the sum of $5. This substance was subsequently identified at the lab as cocaine. O'Neill's protests that he did not do this because of his former dispute with "Black Man" notwithstanding, the weight of the evidence indicates that he did and I so find. Thompson also observed quite a few black males and females in the bar smoking marijuana. He also observed sales of marijuana, not only in the rear lounge area, but also out in front. He observed individuals pulling out brown paper grocery bags which appeared to contain already prepared packages of marijuana and cocaine. Thompson came back to the bar on the afternoon of Friday, June 24, 1983, and sat at the bar toward the center. One employee, Slim, was working behind the bar, and Thompson bought a half pint of liquor from him. At that point, he saw Chick standing down at the open end of the bar with a few other black males and females, about 10 feet away but in plain view. Thompson also saw a package of Kool cigarettes lying on the bar and observed Chick open a small, foil package and pour a small amount of white powder onto the Kool cigarettes. This foil package was similar to that which Thompson had previously purchased from Chick which contained cocaine. While this was being done, another employee of the bar, "Short Man," walked down to that end of the bar, standing right by the Kool cigarettes and the powder, and did nothing to have it removed. Thompson then walked over to Chick, who offered him some "good" cocaine. Thompson, however, declined to use any at that point, but asked if Chick had any to sell. Chick replied that he had a 25-cent piece, whereupon Thompson pulled $25 out of his pocket and gave it to Chick, who gave him the suspected cocaine. Thompson then went back to his seat in the center of the bar, but observed Chick and the others smoking what appeared to him to be a marijuana cigarette. He came to this conclusion from the smell and from the way the cigarette was held and passed around, all of which was common to marijuana use. Carol Houston has been a beverage officer with the Division of Alcoholic Beverages and Tobacco for about 2 1/2 years and is assigned to the Miami district office. She participated in an undercover investigation of The Stardust Bar in late June, 1983. On several occasions, she was accompanied by Officer Thompson. On the evening of June 24 at approximately 9:00 p.m., she went into the bar and ordered a "rum and Coke" from the male by the name of Tony working behind the bar. At this time, she noticed Tony smoking a cigarette handed to him by a patron. From the smell of the cigarette, with which she was familiar based on her training and experience, the cigarette appeared to be marijuana. She asked Tony if the "shit" he was smoking was any good and where she could get some. "Shit" is the street name for any contraband, narcotic, or substance. Tony called over a man by the name of Frank from whom Officer Houston made a purchase of a "nickel's worth" ($5) of a substance subsequently identified by the laboratory as marijuana. On June 25 at approximately 9:00 p.m., Thompson again went back into the lounge and sat at the bar where Slim was the bartender. At this time, he was accompanied by Agent Houston. While they were sitting there, Chick came up to Thompson and asked him if he wanted to buy any cocaine. In response, Thompson purchased a 5-cent package of what was subsequently identified as cocaine. Earlier that day, at approximately 4:30 p.m., when Thompson went into the bar, he saw a female barmaid subsequently identified as "Pat." While Thompson and Pat were talking, Chick came up and asked Thompson if he wanted to buy any "rock" (cocaine). Thompson said he did not know-- he wanted to see it. Consequently, Chick went to the rear of the lounge and came back a moment later with a foil package which he opened in plain view of Thompson and Pat, who said absolutely nothing about getting it out of the premises. Thompson looked closely at the substance, showed it to Pat, and asked Chick how much it was. Chick said "normally $25," but for Thompson, a special price of $20. Thompson paid Chick the $20 and got the substance, all during which time Pat, an employee of the bar, said nothing. This substance was subsequently identified as cocaine. Also on this date and at approximately the same time, Thompson observed numerous sales of marijuana and cocaine openly in such a manner that anyone looking could see what was going on. These sales took place primarily at the bar and at the jukebox. At approximately 7:00 p.m. the following Monday, June 27, 1983, Thompson went back in with Agent Houston, but when they got there, they split up. Thompson sat at the counter and observed that Pat and Tony were both behind the bar as barmaid and, ostensibly, bartender. Thompson talked with Pat at that time about things in general, but later asked her if she had any cocaine. She asked how much he wanted, and he replied that he wanted something small. Tony was standing nearby at that time, and Pat said something to him and told him to go get it. Tony went to the closed end of the bar, where he talked to a customer, and immediately came back, giving Pat five separate small foil packages. Thompson gave Pat $30, and in return she gave him the five small packages, after which she went to another area of the bar. She came back shortly thereafter and gave Thompson $5 change. A few minutes later, however, she came and asked Thompson for one of the five packages. Thompson said he could not give her one because they were for someone else and that person would be angry if he did not turn over the entire amount. Somewhat later that same night, Thompson was seated further back in the lounge at a table. He noticed a pregnant, black female (previously noticed by him to be selling marijuana) go to the bar counter where Houston was seated. He observed them have a conversation and saw her give Houston a cellophane bag. Houston confirmed this, stating that while she was sitting at the bar, she ordered a drink from Tony. Later, the pregnant, black female came into the bar. Houston asked Tony if what she was selling was any good, but Tony did not answer. When Houston said she should get some of the substance, Tony went out, got the pregnant female, and brought her back to Houston, whereupon Houston bought a bag of a substance subsequently identified as marijuana from the pregnant female paying therefor the sum of $10. Somewhat previously, on June 25, Houston was again in the bar, where she ordered a drink from Tony, who was `behind the bar. Later that day, she saw Tony down at the other end of the bar smoking what to her smelled like a marijuana cigarette. She called him over and asked him where she could get some. He asked what she wanted, and she said "a dime's worth of coke." Tony went away and came back shortly thereafter, giving her two foil packets, for which she paid him the sum of $10. The foil packets were subsequently identified to contain cocaine. Neither Houston nor Thompson ever saw Respondent, Elizabeth Gervais, in the bar. In fact, they rarely saw any white individuals in the bar. Thompson saw whites there twice--once when a younger white male was behind the bar talking to a bartender. This individual was there when Thompson came in and left within seconds after his arrival. The other time was when a white patron came in with a black patron, had a drink, and left. Houston only saw a young, white male on the premises on one occasion when she was there. At this time, the individual came in, went behind the bar, and then left. According to William B. Iler, Sergeant with the Tampa Police Department and supervisor of the street anti-crime squad (SAC unit), The Stardust Bar and the surrounding area is known to be in the area of heaviest concentration of street-level narcotics on this side of town. Within the law enforcement community, The Stardust Bar has a reputation of being a location where numerous narcotics transactions occur both inside and outside of the bar both day and night. His unit has been in and out of the bar since May 10 on numerous occasions, but never in response to a call from the bar. Respondent, Elizabeth Cervais, owner of The Stardust Bar and two others in the Tampa area, works full time for a private industrial concern on varying shift work, and operates the bars as a sideline investment. She is the only one with the authority to hire in any of the bars, although the Louis Charboniers, both senior and junior, who work for her in an operational capacity, have the authority to interview prospective employees. When she interviews, a substantial and important part of the interview concerns itself with whether the individual is a drug user or comfortable in the drug environment. If there is any indication that individuals use drugs, they will not be hired. If the individual is hired, he or she is told immediately that The Stardust Bar policy is: drugs are not permitted, drugs will not be used in the bar, drugs will not be used by employees in the bar, and no individuals who are not employees of the bar are allowed behind the bar. When she purchased The Stardust Bar, she was not aware of any drug problem, either there or at the others she owned. She has repeatedly told her employees to immediately call the police if there is any evidence of drugs being used or possessed in the bar. She contends she has also directed both junior and senior Charbonier to inquire of the police to see what they and she can do about the drug problem. She says she has talked with police officials, although she cannot give their names, but it appears to her that neither she nor the police can do anything about the drug problem. However, she did not check with the police or with the Petitioner as to the incidence of narcotics incidents prior to buying either this bar or any of the others that she owned, even though she knew that they were located in a high narcotics area. Several officers of the Tampa Police Department have spoken with Louis Charbonier, Jr., concerning drugs in the bar at varying times. None recall ever talking with Ms. Gervais and, of the contacts made by Louis Charbonier, Jr., most were as the result of calls to come to the bar because of reported use of narcotics going on at the time, and most have come within the three to four weeks prior to the emergency suspension after a young, underage, black female was shot by accident in the bar. Only one officer, Douglas Miller, can recall contacts with Charbonier going back a year and a half. Miller relates that on several occasions, Charbonier asked how he could clean up drugs in the bar, and Miller told him to contact the vice squad, but does not know if this was done. Most of these discussions with Miller took place other than in The Stardust Bar. In fact, though Miller has been in The Stardust Bar at least 200 times over the past year and a half or so, he has seen either Respondent, Gervais, or the Charboniers in the bar only five or ten times. In fact, to his knowledge, he has never seen a manager in the bar all during the time he has been going in there. Joseph E. Pelkington, Colonel of Operations of the Tampa Police Department, was assigned to look into allegations contained in a letter dated January 18, 1983, from Respondent's attorney to the Chief, Tampa Police Department, complaining of, in essence, police harassment of patrons in The Stardust Bar. The letter specifically complains about the repeated attention given to The Stardust Bar and the apparent improper conduct of police department officers in their handling of patrons in the bar. While the letter does not complain of legitimate responses to the bar by the police regarding actual cases of narcotics violations, in essence it complains that rather than too little attention being paid, too much attention is paid to The Stardust Bar by the police department. Louis Charbonier, Jr., works for Respondent as manager of her three bars and sees that they are fully stocked and run smoothly. At the time Respondent acquired this particular bar in the fall of 1981, there appeared to be no particular problem with drugs. However, in the last six months, the drug situation, according to this witness, appeared to be becoming more serious. As a result, he discussed this with the Respondent and was given orders by her to stop it. He claims he went to the vice department, though he cannot remember the officer's name with whom he spoke, and asked for assistance to come in and clean up the drug problem. According to Charbonier, he was told by the police that the problem was too small, and they could not waste their time on "nickel and dime stuff." He claims that within the last two months, he has made 20 to 30 requests to the Tampa Police Department for assistance in the form of reports of drug activities. Charbonier says that he goes to The Stardust Bar three times a day-- usually in the afternoon, in the evening, and at closing. On an almost daily basis, he has cautioned employees about keeping drugs out, has made reports to the police, and has contacted the police about having an off-duty or undercover policeman in the bar. In fact, he has offered the disco booth as an observation point, but so far has received no response from the Tampa Police Department. Notwithstanding this contention by Charbonier, other employees, such as Willie A. Cannon (Slim) and Robert O'Neill (Bobby), have seen him in the bar sporadically, not regularly. Not only Respondent but other employees, such as Becky and Slim, deny that Tony is an employee of the bar and that Tony has any legitimate basis for being behind the bar. They recognize, however, that it is possible from time to time that Tony has been behind the bar, though this is without permission of the Respondent or her organization. This was confirmed by Mr. Charbonier. There is, therefore, insufficient evidence to conclude that Tony is an employee of Respondent. Respondent seems to feel that her current difficulties are as a result of a concerted effort by the Tampa Police Department and the Division of Alcoholic Beverages and Tobacco to put her out of business because of her association with Louis Charbonier, Sr. In fact, when she bought The Stardust Bar and it was known that the Charboniers would be associated with her in some capacity in the venture, she was allegedly told by an agent of the Division of Alcoholic Beverages and Tobacco that they did not like her association with the Charboniers because Louis Charbonier, Sr., was an undesirable (convicted felon) . There is no other evidence to verify this allegation, however. Respondent contends, further, that prior to the last four months, she visited this and her other bars every day. However, during the last four months, because of her varying schedule at her primary occupation, she has basically turned the management and operation of her businesses over to the Charboniers, both of whom work for her, but neither of whom has a financial interest in any of her enterprises. Though she has no formal staff meeting, though she has no formal or written operating instructions, and though nothing is placed on a bulletin board to substantiate or publicize her policies regarding drugs, she contends that she talks with each employee at least once a week, either through the Charboniers or by telephone, and repeatedly emphasizes her non-drug policy. In addition, she has had three large signs posted on the premises stating "no drugs allowed," but has had to replace these frequently because they are torn down by the patrons. To the best of her knowledge, there is only one in place at the present time. By her own admission, she had not been at The Stardust Bar for at least two weeks prior to the Emergency Order of Suspension being issued.
Recommendation On the basis of the foregoing, it is RECOMMENDED: That Respondent's alcoholic beverage license, No. 4-COP, 39-589, be revoked. RECOMMENDED this 27th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Michael D. LaBarbera, Esquire LaBarbera & Campbell Suite 2A, 620 Madison Street Tampa, Florida 33602 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether or not on or about May 11, 1979, on his licensed premises, Albert Parrish, while being directly in charge of these premises, did unlawfully permit persons to play games of dice and cards for money, in violation of Section 849.01, Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 1, 1979, in his licensed premises, the Petitioner, Albert Parrish, did unlawfully maintain a house, booth, tent, shelter or other place, to wit: The Red Honey, 835 East Brownlee Street, Starke, Bradford County, Florida, for the purpose of gaming or gambling, in violation of Section 849.01, Florida Statutes, and Section 561.29, Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the State of Florida, Division of Alcoholic Beverages and Tobacco, against Albert Parrish who trades as the Red Honey in a licensed premises located at 835 East Brownlee Street, Starke, Bradford County, Florida. The Respondent, Albert Parrish, is the holder of license No. 14-69, Series 2-COP, which allows the Respondent to sell beer and wine at the aforementioned premises. The State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida charged with the duty to regulate those persons and other entities who hold beverage licenses within this state and it is in keeping with that charge that the Notice to Show Cause (Administrative Complaint) has been brought against the Petitioner, Albert Parrish, for the offenses as set out in the Issues statement of this Recommended Order. The Respondent has contested those allegations and the case has been considered in accordance with Subsection 120.57(1), Florida Statutes. On May 11, 1979, Beverage Officer Phyllis Williams, in the company of Columbia County, Florida, Sheriff's Officer Oliver Lake went to the licensed premises in Starke, Florida. After entering the licensed premises, they stayed for a period of one to one and one-half hours, during which time the Respondent, Albert Parrish, was present. In this sequence of time Albert Parrish was located at a pool table found in the licensed premises and a number of other persons were at the pool table rolling dice, which is a game of chance. Money was being placed on the table by the players and Parrish was picking up money from the table and placing it in a box which was in his custody and control. Parrish was in charge of the dice game to the extent of being an active participant and receiving financial benefit and to the extent of allowing other persons to play the dice game. While Officers Williams and Lake were in the licensed premises on May 11, 1979, they also observed a card game being played and this went on for some forty-five minutes. The game being played was a game known as "Tunk" which on this occasion was being played with wagered money pieced on the table. The Respondent, Parrish, was not directly participating in the card game, in that he was running the dice game at a separate location within the licensed premises; however, the person who appeared to be in charge of the "Tunk" card game was seen to pass an item to Parrish during the course of the time in which the officers were in the licensed premises. Therefore, although Parrish did not actively participate in the card game, he did unlawfully permit other persons to participate in the card game in his licensed premises. On June 1, 1979, Beverage Officer James Bates went back to the licensed premises in Starke, Florida. On this occasion, Bates observed a number of persons around a pool table and Parrish standing next to the pool table and a dice game being played. Two dice were being thrown and money was being wagered. Parrish was in charge of the dice game to the extent that wagers of money would be placed and Parrish would put a playing card on top of the money and then when a winner had prevailed, Parrish would pay off that winner. Bates observed the fact of this activity for approximately two hours and Parrish remained at the pool table for the entire period of time. Bates also observed an individual who was acting as a lookout and when police cars would pass by, the lockout would give a warning and all of those persons in the licensed premises would step away from the pool table until the police car had left the area of the licensed premises, at which time the game would be resumed.
Recommendation It is recommended that the Respondent, Albert Parrish, have his beverage license No. 14-69, Series 2-COP, suspended for a period of ninety (90) days. DONE AND ENTERED this 18th day of December, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel C. Brown, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Albert Parrish t/a Red Honey 835 East Brownlee Street Starke, Florida ================================================================= AGENCY FINAL ORDER =================================================================
